Overtime Claims Filed By Offshore Oil Rig Workers: Governed by FLSA or California State Law?

The Supreme Court recently ruled unanimously that state wage and hour laws do not apply to offshore drilling workers when federal law addresses the issue in question. In the recent case, Parker Drilling Management Services v. Newton, No. 18-389, the question the Supreme Court was asked to answer was whether California law governs minimum wage and payment for “standby time” for workers on oil rigs working in federal waters off the California shoreline.

When they held that California’s wage and hour laws do not apply, the Supreme Court rejected the Ninth Circuit Court of Appeals’ decision. The Supreme Court concluded that under the Outer Continental Shelf Lands Act (OCSLA), California state law is not applicable as surrogate federal law unless federal law presents a significant void or gap concerning the specific issue. The Supreme Court decision is a decided victory for companies currently operating or servicing oil rigs off the California coast in federal waters.

The Allegations Made in the Wage and Hour Case:

Brian Newton, the plaintiff in the case, worked on oil drilling platforms off the coast of California as an employee of Parker Drilling Management Services, Ltd. Newton alleges that he regularly worked 14-day shifts involving 12 hours of “on duty” hours per day and 12 hours of “standby” per day. During the standby hours, Newton claims he could not leave the platform, yet he was not paid for the standby hours.

Newton filed a class action lawsuit in California state court alleging that the company’s standby policies violated California’s wage and hour laws as well as other claims of labor law violations in connection to Parker Drilling’s failure to provide workers with pay for standby hours. After the case was removed to federal district court, parties involved agreed that the oil drilling platforms where Newton performed his job duties were covered under OCSLA.  

If you are dealing with issues of wage theft and you aren’t sure how to seek justice for the wages you have lost, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Wavedivision Holdings, LLC Faces Class Action Lawsuit for Alleged Meal and Rest Break Violations

Wavedivision Holdings, LLC, a video, internet and phone services company, faces a class action lawsuit alleging that they failed to provide required overtime wages, legally required off-duty meal breaks and mandatory rest periods to their California employees. Blumenthal Nordrehaug Bhowmik De Blouw filed the class action on February 9, 2018.

The class action against Wavedivision Holdings, LLC is currently pending in the San Mateo County Superior Court, Case No. 18CIV00684.

Allegations in the class action include:

·      Failure to lawfully calculate overtime

·      Failure to pay overtime

·      Refusing to allow employees to take off duty meal and rest breaks

·      Refusing to fully relieve employees of job duties for meal periods

Details in the lawsuit indicated that employees were sometimes unable to take off duty meal breaks or rest periods. When they were provided with meal breaks, they were sometimes not fully relieved of their job duties. According to allegations made in the class action lawsuit, Wavedivision Holdings employees were required to work over five hours in a shift with no off-duty meal break; a violation of California labor law.

California labor law requires that all employers offer their employees who are working shifts over five hours in length with an uninterrupted meal break of at least thirty minutes before the employee’s fifth hour of work is completed. California employers are required to provide a second uninterrupted meal break for employees who work ten hours.

According to the lawsuit, class members were paid using a non-discretionary incentive program. Under the program, Wavedivision Holdings offered employees hourly compensation with additional incentive compensation if they were able to successfully meet performance goals put in place by the company. Yet when the company calculated the overtime rate of pay for these same employees, the company allegedly did not include the incentive compensation as part of the “regular rate of pay.” In doing so, the company or Defendant, Wavedivision Holdings LLC, was miscalculating their employees’ overtime pay rate as a matter of policy.

If you have questions about how to file a class action lawsuit or how to qualify as a member of a class action lawsuit, please get in touch with one of the experienced class action and employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Recent Suit Claims Fresenius Left On-Call Time Out of OT Calculations

When Fresenius Medical Care Holdings Inc. calculated employee pay rates at their Ohio hospitals, they allegedly failed to include a stipend for on-call hours. In doing so, they effectively robbed their employees of overtime they were legally obligated to pay. As a result, Fresenius is now facing a proposed class action that was filed in Boston federal court (Freeman v. Fresenius Medical Care Holdings Inc. et al., case number 1:19-cv-10439).  

Fresenius Medical Care Holdings, a German company with North American headquarters in Massachusetts, is the world’s largest provider of dialysis products and services. David M. Freeman, plaintiff in the suit, was employed as a nurse by the company in 2009. During his time with the hospital, he worked at a number of their various facilities throughout Northern Ohio. As payment for his work, Freeman claims he received flat-rate stipends for time he spent on call on top of his hourly rate of pay. According to the lawsuit, Fresenius company policy does not recognize on-call time as hours worked and Freeman claims that this policy defies the Fair Labor Standards Act (FLSA) by excluding the on-call pay from the regular rate for the purposes of overtime calculations.

Freeman believes that the company knew that on-call pay and other, similar forms of payment for employment must be included according to employment law when computing an employee’s regular rate of pay for overtime calculations. Due to the obvious disregard of the illegality of their policy, Freeman alleges that Fresenius acted in reckless disregard for the illegality of their actions when excluding on call pay. The plaintiff argues that the practice of excluding on call pay in this manner runs counter to both longstanding U.S. Department of Labor regulations and case law.

For example, an agency regulation that was issued in the early 1980s states that on-call payment is “clearly paid as compensation for performing a duty involved in the employee’s job.” The regulation goes on to say that as on-call payment is payment for a job duty, it must be included as part of the employee’s regular rate of pay.

The lawsuit brings claims for OT violations under both federal and state law and seeks declatory and injunctive relief. It also establishes a putative class of individuals employed by Fresenius Medical Care North America during the last two years. In addition to naming Fresenius as a Defendant in the suit, Freeman named its subsidiary, Renal Care Group Inc. due to the claim that they issued checks on behalf of Fresenius.

If you have concerns about how your employer calculates your overtime pay or if you are not receiving overtime pay, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP today.

California Court Grants Wells Fargo Loan Officers Class Action in Pay Dispute

California-based Wells Fargo loan officers recently filed suit alleging that they were improperly compensated (Kang v. Wells Fargo Bank). The lawsuit could now have even greater implications as the plaintiffs have been granted class certification by the California court.

The issue in the case is to determine whether state was violated when Wells Fargo allegedly conducted “clawbacks” of hourly wages, vacation and separation pay from earned sales commissions. Allegedly, Wells Fargo made a practice of compensating its mortgage sales force using advances on their commissions at a basic rate of around $12/hour, then “clawback” the hourly pay from commissions and vacation pay as they were earned.

James C. Kang, plaintiff in the case, claimed that the clawbacks were in violation of a number of state labor laws that related to employee compensation, including: overtime pay, minimum wage requirements, and vacation pay requirements because they left members of the sales force affected by the practice unpaid for tasks they were required to fulfill by the company that were unrelated to direct sales. Kang also alleged in court documents that members of the sales force who were promised vacation pay did not actually receive it due to the clawbacks.

The bank claims that the pay structure used to compensate home mortgage consultants is compliant with California wage and hour laws, including paying for all hours worked and that the compensation structure allows mortgage workers to earn a competitive, performance-based wage.

Since Well Fargo implemented a mandatory arbitration provision for its sales force on December 11, 2015, the judge ordered those hired or rehired after that date to be excluded from class certification. All other nonexempt employees of Wells Fargo as of October 27, 2013 working as home mortgage consultants or private mortgage bankers, junior HMCs or junior PMBs are part of the class. A subclass is included in the class certification for individuals who were terminated from their employment.

If you have questions about overtime or minimum wage requirements in California, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Court Rules On-Call Tilly’s Workers Should Receive Pay

Some employers require workers to call in in order to find out if they have to work their shifts. Some employees are required to call in just hours before they may need to start work. This practice triggered California’s requirement that workers be given “reporting time pay.” A split California appeals panel recently brought this up when reviving a proposed wage class action against Tilly’s Inc. In doing so, they potentially opened up many other California retailers to similar (potentially expensive) suits.

The Second Appellate District said Tilly’s on-call policy triggers California State’s Wage Order 7, in which it states that employers must provide workers with pay when they report to work but are not put to work or provided with at least half of their usual/scheduled day’s work. Since workers are “reporting” when they call in, Wage Order 7 means employers must pay them between 2-4 hours worth of wages depending on the length of the scheduled shifts being referenced.

Tilly’s practice of having their workers call in to see if they need to work their shifts just hours before they would need to start work, is exactly the type of policy that reporting time pay was intended to stop. The appellate court decision overturned a lower court ruling that tossed the suit when they concluded that the on-call scheduling alleged in the case against Tilly’s triggers Wage Order 7’s reporting time pay requirements. They noted that on-call shifts are a burden to employees who cannot take other employment, attend school or make plans socially because they may need to work, but simultaneously may not receive payment for the time they have set aside unless they are ultimately called in to work.

Tilly’s argues that workers “report” for work under Wage Order 7 only if they physically show up for the start of a scheduled shift. The appellate court concluded that the requirement should be read to include those required to check in before physically arriving on the job before granting worker Skylar Ward’s appeal.

The appellate court noted that while policies like Tilly’s call-in requirement probably didn’t exist when Wage Order 7 was adopted by the state, the reporting time requirement covers situations other than those specifically considered by the drafters.

If you have questions about what is covered by Wage Order 7 or if you are required to call in to report before a shift, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP so we can help you protect your rights in the workplace.

Gordo Taqueria Employee Lawsuit Results in $690,000 Settlement

Gordo Taqueria has agreed to pay a $690,000 settlement to resolve a class action lawsuit brought by employees alleging the restaurants’ owners engaged in wage theft and other employment law violations. Gordo Taqueria owns five restaurants in San Francisco, Berkeley and Albany.

The settlement received preliminary approval from Alameda Superior Court judge Brad Seligman in December 2018. The settlement is scheduled to receive final approval on April 2nd, 2019. Within the settlement, the Defendant notes that they do not accept the facts as presented in the case by the plaintiffs and they admit no wrongdoing.

The lawsuit was brought by former dishwasher and prep cook Jose Martinez. Martinez worked at the College Avenue location in Berkeley from 2013 to 2015. The suit includes 240 Gordo employees, some current and some former. In the December 2016 complaint, Martinez alleged that Gordo did not pay him and other workers in similar positions as required by law. Workers regularly completed 10-12 hour days and were not provided with overtime wages. Tips were distributed only once or a few times per year and were given to employees based on hours they worked and their rate of pay, which is also in violation of labor law. Employees were allegedly not provided with required meal breaks or rest periods when completing long shifts (10+ hours/day).

Industry practice and state law both stipulate that cash tips are distributed at the end of each work day. California law specifically stipulates that tips are the sole property of the employee and that credit card tips should be distributed at the end of each pay period. Allegations were also included that the employees did not receive their full wages or back pay once their employment with the company ended and the company did not maintain accurate payroll records to calculate hours worked and wages owed.

During the discovery process, it came to light that Gordo did not use a time clock until 2015. Before that, the company relied on manual record keeping and the pre-2015 records were not kept on file by the company (another violation, this time of state record-keeping requirements).

Gordo owners dispute all the allegations made by the plaintiffs and state that they have done nothing unlawful.

If you are dealing with issues of wage theft and you aren’t sure how to seek justice for the wages you have lost, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

MedMen Faces Class Action Suit Listing Multiple Employment Law Violations

The Los Angeles-based company, MedMen, recently completed an acquisition in Emeryville, California and now has one of only two adult-use licenses in the Emeryville area. They are planning further expansion in 2019. The Emeryville dispensary plans to open in East Bay in 2019. In addition to eight other dispensary listings in Southern California, MedMen operates in: Arizona, Nevada (3 locations), and New York (4 locations). The company also holds licenses that give them the power to operate up to 70 facilities in 12 different states. They aggressively support progressive marijuana laws and lead the industry in terms of assets and operations in the U.S.

The company is also facing their fair share of trouble; listed as the defendant in a class action suit filed on behalf of two former employees of the West Hollywood dispensary located at 8208 Santa Monica Boulevard. The class action lawsuit could potentially include about 100 employees (current and former).

The West Hollywood location holds a medical cannabis license has been granted a temporary license to sell recreational marijuana pending the allocation of permanent recreational cannabis licenses that are scheduled for December 18th, 2018. The lawsuit alleges that the business violated a number of employment laws regarding employee work hours, wages and required breaks. For instance, the company required that their workers work overtime hours without paying them overtime wages. The company also allegedly failed to give breaks required by California state employment law. Workers also allege that the company failed to provide accurate payroll records.

The lawsuit holds the potential for fines/payouts to employees totaling $50 for their first pay period during which they were underpaid and $100 for each additional pay period during which they were underpaid. MedMen has faced similar claims of employment law violations in the past. In fact, California MedMen employees have also filed claims that the company made paycheck deductions for tips paid by credit/debit cards. In some cases, the practice even resulted in negative paychecks.

If you are not being paid overtime wages or if you need to discuss California wage and hour law with an experienced California employment law attorney, please get in touch with us at Blumenthal Nordrehaug Bhowmik De Blouw LLP.